United States v. Clifton Jackson , 546 F. App'x 643 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10629
Plaintiff - Appellee, D.C. No. 3:11-cr-00142-RCJ-
VPC-1
v.
CLIFTON JAMES JACKSON, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted October 16, 2013.**
San Francisco, California
Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case should be submitted
without oral arguments pursuant to Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
A jury convicted appellant Clifton James Jackson of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(b)(1) and 924(a)(2).
Casino employees had found a bag containing a firearm stuck between two slot
machines near where Jackson had been playing slots in a Reno casino. The bag
and firearm were traced to Jackson with evidence including a library card and keys
attached to the bag and surveillance videos. The district court denied Jackson’s
pro se motion for new trial, based on alleged ineffective assistance of trial counsel,
and sentenced Jackson to a mandatory minimum of 180 months of imprisonment
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On this direct
appeal, Jackson asserts that we should grant him a new trial, because his trial
counsel was ineffective in failing to call a witness; that, without the testimony of
the missing witness, the evidence was insufficient to convict him; and that the
district judge improperly counted a 1991 Virginia conviction as a predicate
“serious drug offense” for the ACCA enhancement of his mandatory minimum
sentence. We have jurisdiction over Jackson’s appeal of the denial of his motion
for new trial and the sufficiency of the evidence pursuant to 28 U.S.C. § 1291, and
over Jackson’s appeal of his sentence pursuant to 18 U.S.C. § 3742(a). We affirm.
1.a. Rule 33 provides for a new trial in the “interest of justice.” See Fed. R.
Crim. P. 33(a); United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). We
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review the denial of a motion for new trial for abuse of discretion. United States v.
Steel, 759 F.2d 706, 713 (9th Cir. 1985). The district court did not abuse its
discretion in denying Jackson’s Rule 33 motion, because the basis for the motion
was ineffective assistance of counsel, which was not apparent on the record. See
United States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). Jackson’s
“ineffective assistance” claim can be brought pursuant to the “customary procedure
for challenging the effectiveness of defense counsel in a federal criminal trial . . .
under 28 U.S.C. § 2255.” United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)
(internal quotation marks and citations omitted). We will not consider an
“ineffective assistance” claim on direct appeal, unless the record is “sufficiently
developed” or the legal representation was “obviously” inadequate. McGowan,
668 F.3d at 605. The record here was not “sufficiently developed” simply because
trial counsel’s challenged decision was purportedly “tactical.” That
characterization is not enough for us to determine “what counsel did, why it was
done, and what, if any, prejudice resulted.” McGowan, 668 F.3d at 605 (emphasis
added).
b. We reject Jackson’s argument that there was insufficient evidence to
convict him, where the jurors did not hear the testimony of a casino employee who
would have provided a different version of the finding of the bag with the firearm
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in it, whether that argument goes to the “prejudice” prong of his “ineffective
assistance” claim or is a stand-alone challenge to the sufficiency of the evidence.
Viewing the evidence that was presented in the light most favorable to the
prosecution, a rational trier of fact certainly could have found the essential
elements of the crime charged against Jackson beyond a reasonable doubt, where
there was overwhelming evidence linking Jackson to the firearm, independent of
the question of who, exactly, found the bag containing the firearm. United States
v. Stargell, 725 F.3d 1015, 1019 (9th Cir. 2013).
2. We also reject Jackson’s contention that his 1991 Virginia conviction for
distributing cocaine was not a predicate “serious drug offense” for an ACCA
enhancement to his mandatory minimum sentence. Descamps v. United States,
___ U.S. ___, ___, 133 S. Ct. 2276, 2282 (2013) (citing 18 U.S.C. § 924(e)(1)).
Jackson’s Virginia indictment identified the basis for the charge as Va. Code Ann.
§ 18.2-248 (1991), which has the necessary “‘maximum term of imprisonment of
ten years or more.’” McNeill v. United States, ___ U.S. ___, ___, 131 S. Ct. 2218,
2220 (2011) (quoting § 924(e)(2)(A)(ii)). His plea agreement in the Virginia case
also expressly stated that he was pleading guilty to an offense with a minimum
sentence of five years and a maximum sentence of forty years.
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Jackson contends that he was not sentenced for an offense under § 18.2-248
(1991), because his actual sentence of 6 years, with 18 months suspended, was less
than the 5-year minimum under that statute, and Virginia courts are not permitted
to suspend sentences below a statutory minimum. Pursuant to Va. Code Ann.
§ 19.2-303 (1991), however, Virginia courts are authorized to suspend all or part of
a statutory sentence. See Peyton v. Commonwealth, 604 S.E.2d 17, 19 (Va. 2004).
Mouberry v. Commonwealth, 575 S.E.2d 567 (Va. Ct. App. 2003), on which
Jackson relies, is distinguishable, because that case involved Va. Code Ann.
§ 18.2-308.2(A), which expressly prohibited suspending sentences below the
statutory minimum. Id. at 580 (quoting Va. Code Ann. § 18.2-308.2).
Also, United States v. Alvarez-Hernandez, 478 F.3d 1060, 1064 (9th Cir.
2007), and the definition of “sentence of imprisonment” as “the maximum sentence
imposed” under U.S.S.G. § 4A1.2, are inapplicable. Application Note 1 to
U.S.S.G. § 4B1.4, the “Armed Career Criminal” guideline, makes clear that the
definitions of “violent felony” and “serious drug offense” in 18 U.S.C. § 924(e)(2)
are not identical to the definitions of “crime of violence” and “controlled substance
offense” used in § 4B1.1, the career offender guideline, and that the method for
determining prior sentences under § 4A1.2 is inapplicable to the ACCA
enhancement. Moreover, the plain language of § 924(e)(2)(A)(ii) defines a
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“serious drug offense” on the basis of the “maximum term of imprisonment . . .
prescribed by law,” not on the basis of the actual sentence. 18 U.S.C.
§ 924(e)(2)(A)(ii); McNeill, ___ U.S. at ___, 131 S. Ct. at 2220.
Finally, although § 18.2-248 does not, itself, define or cross-reference any
definition of “controlled substance,” or define or cross-reference any definition of
“cocaine” as a “controlled substance,” another Virginia statute, § 54.1-3448, does
define “cocaine” as a “Schedule II controlled substance.” See Va. Code Ann.
§ 54.1-3448(1). Section 18.2-248(A) refers to “controlled substances” and
“Schedule II controlled substances,” and both §§ 18.2-248 and 54.1-3448 are part
of the Virginia Drug Control Act, see Hylton v. Commonwealth, 723 S.E.2d 628,
632 (Va. Ct. App. 2012); Lane v. Commonwealth, 659 S.E.2d 553, 557 & 559 n.6
(Va. Ct. App. 2008); Shears v. Commonwealth, 477 S.E.2d 309, 401 & n.4 (Va. Ct.
App. 1996). Thus, § 18.2-248(A) defines a “serious drug offense,” because it
involves “cocaine,” which is specifically defined as a “controlled substance” under
state law, as it is under federal law. See 21 U.S.C. § 802(6), (17)(D); 21 U.S.C.
§ 812, Schedule II, (a)(4).
We reject Jackson’s challenges to both his conviction and his sentence.
AFFIRMED.
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